United States District Court, D. Montana, Great Falls Division
TIMOTHY S. McDOWELL, Personal Representative of the Estate of SUSAN K. McDOWELL, Deceased, Plaintiff,
BURLINGTON NORTHERN SANTA FE RAILWAY COMPANY, a Delaware for Profit Corporation; BURLINGTON NORTHERN RAILROAD COMPANY, a Delaware for Profit Corporation; GREAT NORTHERN RAILWAY COMPANY, a Corporation for Profit; ROBINSON INSULATION COMPANY, a Montana Corporation; STATE OF MONTANA, a Governmental Entity; LIBBY SCHOOL DISTRICT #4, ASA WOOD ELEMENTARY SCHOOL; and DOES A-Z, Inclusive; Defendants.
ORDER ADOPTING MAGISTRATE JUDGE'S FINDINGS AND
Morris, United States District Court Judge
moved to remand this case to the Eighth Judicial District of
the State of Montana, after Defendants removed the case
pursuant to 28 U.S.C. §§ 1441(a) and 1446. (Doc.
13.) United States Magistrate Judge John Johnston issued
Findings and Recommendations in this matter. (Doc. 29.) Judge
Johnston recommended that the Court grant Plaintiff's
motion to remand because complete diversity does not exist
between the parties and the United States District Court does
not have jurisdiction over this case. Defendant Burlington
Northern Santa Fe Railway Company (“BNSF”) filed
objections. (Doc. 30.) The Court reviews de novo findings and
recommendations to which objections are made. 28 U.S.C.
Timothy McDowell, is the surviving spouse of Susan McDowell
and acts as personal representative of her estate. Mrs.
McDowell lived and attended school in Libby, Montana.
Plaintiff alleges that she was exposed to hazardous
quantities of asbestos-contaminated vermiculite that was
discarded from railcars as BNSF transported the material from
a mine near Libby, through the community, and on to various
destinations throughout the United States. (Doc. 5 at 6.)
Plaintiff alleges that one of the locations where Mrs.
McDowell came into contact with asbestos-contaminated
vermiculite was at her school, Asa Wood Elementary School.
(Doc. 5 at 39.)
alleges that all of the asbestos contaminated vermiculite
that Mrs. McDowell was allegedly exposed to originated from
the mine located near Libby. The State of Montana (“the
State”) began conducting inspections of the mine in the
1950's. Plaintiff alleges that in the course of these
inspections, the State determined the vermiculite contained
hazardous levels of asbestos yet took no meaningful action to
correct the hazard or warn the townspeople of Libby. (Doc. 5
at 8, 11-17.) On May 6, 2011, doctors diagnosed Mrs. McDowell
with mesothelioma, a rare cancer most often caused by
exposure to asbestos. Eighteen months later, Mrs. McDowell
succumbed to the disease. Plaintiff filed this Complaint
against BNSF and other defendants, including the State and
the Libby School District, alleging each committed torts that
led to his wife's death.
objects to Judge Johnston's conclusion that the Montana
state court should decide whether the State was properly
joined. (Doc. 30 at 3.) BNSF further objects to Judge
Johnston's rejection of fraudulent misjoinder as a basis
for removal. Id. BNSF finally objects to Judge
Johnston's finding that the State is more than a nominal
party in this matter. Id. BNSF requests the Court
decline to adopt the Findings and Recommendations, deny
Plaintiff's motion for remand, and sever and remand or
dismiss Plaintiff's claims against the State.
asserts that this Court has subject matter jurisdiction under
U.S.C. § 1332 on the basis of diversity of parties.
Plaintiff disputes diversity, noting that the State remains a
party to this action.
strong presumption exists against federal jurisdiction over
cases removed from state courts. Gaus v. Miles,
Inc., 980 F.2d 564, 566 (9th Cir. 1992). The party
seeking removal maintains the burden to establish removal is
proper. Id. Courts must strictly construe the
removal statute. Moore-Thomas v. Alaska Airlines,
Inc., 553 F.3d 1241, 1244 (9th Cir. 2009). If any doubt
exists that removal is proper, courts must remand.
in this case is proper only if there is complete diversity of
citizenship-meaning each plaintiff is a citizen of a
different state than each properly joined defendant. 28
U.S.C. § 1332; Morris v. Princess Cruises,
Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). “When
an action is removed based on diversity, complete diversity
must exist at removal.” Gould v. Mutual Life Ins.
Co. of New York, 790 F.2d 769, 773 (9th Cir. 1986). The
State is a party in this action. A state has no citizenship
and therefore cannot have diverse citizenship for purposes of
diversity jurisdiction. Morongo Band of Mission Indians
v. California State Board of Equalization, 858 F.2d
1376, 1381 (9th Cir. 1988).
the State's presence as a defendant, complete diversity
did not exist at the time this case was removed. BNSF asserts
that this Court can find diversity in this case because the
State was improperly joined, is a nominal party, or was
asserts that Plaintiff's claims against the State and
against BNSF fail the permissive joinder test under
Fed.R.Civ.P. 20. (Doc. 30 at 9.) A plaintiff may properly
join multiple defendants in a single action if the
plaintiff's claims against them arise from the
“same transaction, occurrence, or series of
transactions or occurrences” or share a common question
of law or fact. Fed.R.Civ.P. 20. This liberal joinder
standard promotes trial convenience and judicial ...